Malik, CJ.

[1] In this case we had to devote considerable time in ascertaining the facts. The lower appellate Court purported to record certain findings, which normally, would be findings of fact but those findings were challenged on the ground that they were not based on evidence but on facts stated in certain judgment that were filed by the plaintiff.

[2] It seems to have been assumed in several judgments that in the days of Emperor Babar the land revenues of a half share of village Lakhanpur and of village Mohammadpur Biyar were assigned to some ancestor of the plaintiff and the defendants, Raja Babu and Moti Lal, in lieu of his past services as a Hakim. There is nothing on the record to bear out this claim, and as a matter of fact, it appears from the District Gazetteer of the United Provinces, Vol. 15, relating to Budaun, that Budaun came under the Muslim domination for the first time when it was conquered by the nephew of Mahmud of Ghazni, when he invaded Rohilkhand. It is not necessary to go into the ancient history in detail which is based mostly on tradition. But from the Gazetteer it appears that Budaun was under the domination of Khilji Sultans, and then Saiyid Sultans and then Lodi Sultans, and it was not till the reign of Emperor Akbar that the Moghuls seem to have had anything to do with this district.

[3] The British first came into occupation of Budaun when it was ceded to them under a treaty with the Nawab Wazir of Oudh on 14-11-1801, on which date the treaty was signed. There is nothing to show what the position in that year with respect to these two villages was, and it was not till the year 1853 that, it is said, the British Government ratified the grant in favour of Hakim Dalpat Rai, who was a descendant of the original grantee. The document dated 30-7-1853 by itself proves very little. A report was made to the Secretary, Sadar Board of Revenue, N. W. P., Agra about the grants in various districts including Budaun, and after enquiry 54 perpetual grants were recognised and 10 were struck off the register. It may be that 10 biswas of village Lakhanpur and village Mohammadpur Biyar were recognised as grants in perpetuity.

[4] In the settlement reports of Budaun District of the year 1873 at page 55 it is given that in pergana Budaun there were 43 entire Muafi villages, the details of which are given in a statement No. 4 at page 440 and villages Lakhanpur and Mohammadpur Biyar are mentioned against Nos. 18 and 20 as revenue-free grants. At page 56 of this report there is a note to the effect that there were certain villages in which revenue had been granted in perpetuity, and for the purposes of calculating the amounts of this revenue the Muafidars were asked to submit return of their incomes, and land-revenue was calculated at 55 per cent of the income. Whether these two villages were of that nature or not is not clear at all. But since they are included under a different head of rent-free grants, probably they were not.

[5] The learned Judge has relied on the fact that in one of these villages there were certain other persons who were Zemindars and who were in possession up to the year 1208 Fasli, which probably is a mistake for 1228 Fasli, and it in from that that he has deduced that the plaintiff ancestors must have been grantees of land (sic) venue. As we have already said, if the plaint. (sic) wanted to prove the fact that a grant had beer made to his ancestors of land revenue alone and that they were not ordinary 'Muafidars', he should have produced proper material before the Court, I and facts mentioned in various judgments could not be used as evidence to prove his contention.

[6] Assuming, however, that the plaintiff's (sic) castors were grantees of land revenue, though does not appear from the records available the any land revenue was ever assessed since 1801 which the property for the first time came into the possession of the British Government, the question has been raised whether it comes und